|Bioethics and Medical
Basic Principles in Bioethics and Biolaw
Jacob Dahl Rendtorff
ABSTRACT: As a scientific Rapporteur on a European Union Commission Project in the framework of the Research Programme Bio-Med II, I am currently writing a large report on basic bioethical and biolegal principles in Europe. The principles that are investigated are autonomy, dignity, integrity and vulnerability. Against this background, this paper is a clarification of the foundation and significance of these basic principles in bioethics and biolaw. The task of this paper is to elaborate on the philosophical and conceptual framework of these principles. The point of departure is a discussion of the choice of exactly these principles in the context of the law of the human person as well as of the ethical and legal status of the principles. This leads to the definition and explication of each concept and their mutual relations. It is important to emphasize that the principles, rather than being mutually exclusive, are interdependent and imply each other in the protection of human beings in biomedical research and application. Finally, the definition of these principles will be set in relation to social solidarity and responsibility in the modern welfare state where we experience a transformation of the legal system towards an extended notion of state responsibility and a concern and protection of the vulnerable and weak in European societies.
Definition of the Basic Principles in Bioethics and Biolaw
1. Why these principles?
This article gives a clarification of the foundation and significance of the basic principles: Autonomy, dignity, integrity and vulnerability. The task is to elaborate the philosophical and conceptual framework of the definition of the basic principles. The point of departure is a discussion of the selection of exactly these principles in the context of the law of the human person, as well as of the ethical and legal status of the principles. This leads to the definition of each concept and their mutual relations. It is important to emphazise that the principles rather than being mutually exclusive are interdependent and presupposing each other in the protection of human beings. Finally, the definition of the principles will be seen in relation to social solidarity in the modern welfare state where we experience a transformation of the legal system towards an extended notion of state responsibility, and also a concern and protection of the vulnerable and weak in the European societies.
1. Why These Principles?
The selection of "autonomy", "dignity", "integrity" and "vulnerability" as the four basic principles in bioethics and biolaw intends to create a solid foundation for the protection of human beings in relation to the fast developments in biomedicine and biotechnology. These principles can be said to express a European Ethical and Legal Culture (1) of autonomy and integrity of the human being. The principles must be seen in the framework of human rights law and the law related to the human person. Persons are "liberty holders" and "right-claim" holders. (2) The principles manifest the concern to protect the person and to value the development of the individual, which is a strong communitarian tendency in European societies. The principles imply basic human rights: the right to self-determination of the individual but also the right to protect the life and existence of the private sphere of the person. Against this background this article proposes to interpret the basic principles as being at the same time descriptively present as immanent normativity in the actual bioethical and biolegal developments, and (at the same time) as being guidelines for the proposal of a future European politics on bioethics and biolaw.
Among the four principles autonomy is the most widely mentioned in the debate about bioethics and biolaw. It has also been widely discussed in the Anglo-American bioethical debate where the principalist philosophies of Beauchamp and Childress in their influential book Principles of Biomedical Ethics have become the foundation of much research in bioethics. (3) This book deals with the principle of respect for autonomy, the principle of non-maleficence, the principle of beneficence and the principle of justice. It represents an approach of patient autonomy that has been widely accepted in American and to some extent European countries. At the same time it has a tendency to consider autonomy as the only guiding principle concerning the protection of the human person forgetting other dimensions of the protection of human beings which are particularly important in bioethics and biolaw.
Therefore, other supplementary principles must be taken into account when dealing with autonomy and the protection of human beings in bioethics and biolaw.
The three alternatives to autonomy, namely dignity, integrity and vulnerability will be clarified and further investigated. They constitute principles that center around the protection of the private sphere of human beings. They are presented as more fundamental than the utilitarian approach of quality of life that plays an enormous role in biomedical decision-making. (4) They express an initiative to reach the concrete phenomenological reality of the human life-world. It is presupposed that the basic principles are implicit in the public debate and the everyday understanding of the ethics of human existence. The principles must be interpreted as expressions of the ethical understanding of the human person in daily ethical life.
The four principles must also be seen as an expression of the European humanistic tradition of giving high value to individual human beings and their development in society. The principles can be interpreted in a personalistic perspective (5) as a foundation for a European Humanistic Bioethics and Biolaw. As such the principles draw heavily on the humanistic conception of the person as well as the corporeal well-being of the person, something which plays an extensive role in the humanism of French and Italian philosophy. But the traditions of valuing the freedom of the individual in Northern European countries are also of basic importance for the understanding of the cultural foundations of the basic principles. The protection of the psychical and physical being of the person is of the utmost importance in the modern legal systems as caring for the subject of law. The concept of a just legal order is closely linked to the protection of the life and well-being of the participants of society.
The principles can be seen as the foundation for the protection of human rights in biomedicine. The formulation of the definitions and contents of the basic principles in the different biomedical subfields are at the same time conducive to formulating the protection of the human person in biomedicine. The description of the basic principles contribute to the formulation of the different dimensions of human rights: the protective dimension and the claim dimension of the concept of human rights. In this way the investigation of the basic principles implies their legal realisation in the different legal orders in the European societies. Human rights and biorights can be seen as the concrete realisation of the necessary protection of the personal sphere of human beings that is demanded by the technological development in biomedicine.
There are a number of proposals for determining the metaphysical foundation of the basic principles. Without entering deeply into this discussion the investigation sees the principles as factually present in the debate about the protection of the human person. The analysis focuses on the cultural signification of the basic principles in the public debate, the legal regulation and the legislative processes in biomedical issues. In this context, we experience a closer connection betweeen ethics and law, in which the basic principles are interpreted both as ethical and legal principles and closely related to legal and political rights, the principles are a question of "political morality", and rights can be seen as triumphs in order to realize the protection of the human person. (6)
The relation between principles and concrete cases shall be understood as a dynamical hermeneutical relation in which cases and principles mutually determine the development of biolaw. Principles cannot only be abstractly defined but must be seen in the light of the situation of application and neither can these situations be understood without general rules and principles. What is needed is a theory of reflective judgement to determine the relation between principles and cases. (7) In this way there is no real contradiction between casuistry and principalism.
The principles should furthermore not be interpreted in a hierarchical way. They express different dimensions of the same concern for the protection of human beings. This means that the hermeneutical analysis of the meaning of the principles, in different ethical and legal orders, implies some specific normative views about how the principles should function as leading principles in the European societies and their future in the European Union. In this way the principles can be seen as a "communitarian" expression of the ideal of a common European legal morality.
2. The Principle of Autonomy
Autonomy consists of "auto" and "nomos". This means self-government in Greek language, and in Ancient Greece a city state was said to be autonomous when it was self-governing. (8) In the Western tradition autonomy has been linked with the freedom of the individual and the possibility of the harmonious development of the human person according to personal choices, and also wishes for his or her future life. For Immanuel Kant, the person has moral freedom and is autonomous, because this is an end in itself. Here persons are their own legislators. For John Stuart Mill, autonomy is said to be the freedom from coercion and the possibility of acting and deciding for yourself. The intimate connection between autonomy, moral independence and personal self-development is also stressed in the European personalistic and existentialistic philosophies (Sartres, Mouniers). They emphasize the personal freedom, engagement and moral responsibility of the human individual.
In the existentialist perspective, autonomy also implies a process of reflection and active presence of the individual. (9) Existential freedom is a condition for personal identity and self-development. Autonomy is a second-order capacity of individuals to reflect on their first-order preferences and desires. (10) It is important to stress that a theory of autonomy must imply positive liberty and active choices of the individual.
As the political origins of the term "auto-nomos" suggest there is also a close connection between individual autonomy and the political organisation of society. (11) Modern political philosophies, represented by John Rawls, Ronald Dworkin and Jürgen Habermas highly value individual autonomy as the foundation for the political structure of society. In modern society, the principles of justice presuppose that human individuals are free and equal. Society is developed in a procedure of construction in which autonomous agents are supposed to agree rationally on some common principles of justice. (12) In this context, autonomy often implies other basic characteristics, e.g. rationality, individuality, independence and moral responsibility of the human person. It is central to the idea of liberal democracy that the individual has the possibility of self-realisation and of self-development. A legitimate government has to be built on the self-determination by autonomous individuals. Therefore, protection of individual autonomy is a basic principle in all European constitutions. It is important to stress that a society built on responsible, autonomous decision-making does not necessarily mean a society without communitarian engagements and common values. (13) Rather, the choice of such values should be motivated by individual decision-making rather than collective coercion.
There is, however, a broader and more serious communitarian critique of the concept of autonomy. It states that the concept of autonomy presupposes an institutional and cultural background. Autonomy must be recognized as a basic value if it has to have any real impact on decision-making. Only a free and democratic society can make autonomy possible. At the same time autonomy should not rule out social obligations to help others. An account of autonomy cannot be totally libertarian but must recognize the situated subject in a large number of social practices, commitments, compassions and relations to other people. (14) Only to focus on autonomy will be forgetful of the fragile and vulnerable components of the human condition requiring care and respect for the human person.
The problem is if autonomy presumes a total substantial and procedural independency, or if it is possible to be autonomous and at the same time rely on communitarian values, legal systems, moral or religious authorities. This points to the question if it is possible to act autonomously in situations which to a large degree are steered by outer determination? And in which way are autonomous decisions allowed to rely on the opinions of other persons? In this context it should be evident that moral autonomy is related to the free and autonomous choice but that this does not imply total independence from outer factors.
Autonomy implies the capacity to make your own decisions about your own life. These decisions can, however, also be taken in collaboration with other human beings and according to other values. To be morally autonomous is related to the sincere choice and personal decision-making rather than to the inventing of some genuine personal values. Autonomy does not necessarily presuppose your own idea of a moral law (Sartre) but can presume equally the personal insight in moral reason and the categorical imperative (Kant). Moral autonomy is a question of free moral choice according to a set of values that the individual considers right and just. (15)
The central importance of autonomy for the development of the human person (personal agency), for political democracy and our conceptions of moral decision-making is the background for the basic significance, attributed to autonomy as a fundamental right that is used to justify proctection of privacy, confidentiality, refusual of treatment and informed consent. After the Nüremberg Declaration and the Helsinki declarations the notion of "informed consent" has been introduced as a basic requirement in most European Countries. Every medical intervention must be legitimated in informed consent. The patient must have the right to make his or her own decisions about treatment, and refusal of treatment. The concept of informed consent is introduced to secure a thoroughgoing self-determination of patients in medical treatment.
The patient has the right to make the decisions about his or her own body in the context of medical treatment. There can be formulated some basic requirements of the doctrine of informed consent that are necessary for the functioning of the concept in practical medicine. (16) It supposes that the patient has a meaningful choice and freedom in relation to the process of medical treatment. Therefore the patient has to engage him- or herself intentionally and with understanding and knowledge in the process of treatment. The patient has to be free and capable of decisions without any violence and coercion. An autonomous action means: 1) freedom 2) authenticity 3) deliberation 4) moral reflection. (17) The decisions are compatible with an existing moral tradition in the hospital as long as they are totally free and independent decisions. Informed consent should be considered as an event, as a process of communication and action between physician and patient eventually leading to the decision and undertaking of the treatment. In this context according to Beauchamp and Childress essential elements in informed consent are: 1) disclosure 2) understanding 3) voluntariness 4) competence 5) consent. (18)
Although it is of enormous importance in biomedicine to secure the right treatment of individuals, autonomy and informed consent are concepts which comprise several problems meaning that they cannot be the only concepts to express the humanistic idea of biomedicine and the protection of human beings and person in the biomedical field. Briefly one can mention a certain number of difficulties necessitating the completion of autonomy with the other fundamental principles in bioethics and biolaw.
First of all the concept of autonomy cannot be abstracted from the vulnerable and fragile human condition and the existence of the person as a "situated subject". It is not certain that the patient is able to judge the treatment process or fully understand the situation of treatment. Further there is the problem of the correct disclosure of information and the possible paternalist intervention of the doctor. And what about the therapeutic privilege of the doctor in a situation where the information would be of doubtful benefit for the patient? One could also mention the moral traditions and conceptions of the hospital, in conflict with the personal conceptions of the patients. (19)
Apart from these inner difficulties in using the principle of autonomy, there are situations in bioethics and biolaw where the principle of autonomy simply does not apply. In cases concerning the unborn life, embryos, fetuses, the human body and its body parts, the body after death, organs etc. the principle of autonomy is of little signification, because one cannot say that the body before birth and after death, or the different body parts, have moral autonomy. This also goes for incompetent patients, e.g. minors, coma patients or mentally diseased, who are not able to make their own decisions. We are, however, reluctant, not to contribute moral value and concern to these people and living objects. Therefore, the concept of autonomy is very limited as a basic concept in bioethics. The adequate protection of the human person must take into account the other dimensions of protection: the principles of dignity, integrity and vulnerability.
3. The Principle of Human Dignity
There is a close link between autonomy and dignity. Sometimes dignity is even equated with autonomy, and is seen as a part of being a human person. Human dignity has been a very influential concept in the western tradition. The principle of human dignity signifies that the human beings have a special position that places them over the natural and biological position in nature. As a moral being and because of its status as a human being the notion of "dignitas" is contributed to its intrinsic value and place in the world. From the beginning it emphasized this out-standing position of the human being in the universe. The Stoics pointed to the "dignitas" of man as an essential contribution to the human being. As moral beings having freedom, autonomy, capacity of moral reasoning and responsibility human beings are assigned a dignity (dignitas) that determines their value and position in the world. The idea of the intrinsic value of human life and dignity was developed in Christianity when the individual human person was assigned an intrinsic value. Augustin said that the human being was created in the image of God and therefore individual life would be inviolable. The concept of dignity is a characteristic of human beings having to choose between good and evil, and securing its own as well as the dignity of other people. In Renaissance thinking the concept developed further especially in the writings of Pico della Mirandola, where dignity means that human beings are free to choose if they want to fall down to the lower levels characterised by animal life, or attend the higher divine levels. (20) In Antiquity, Christianity and the Renaissance the concept of human dignity expressed the moral superiority and responsibility of human beings in relation to themselves, animals, nature and the whole universe.
These aspects of human dignity found a new synthesis in Immanuel Kants philosophy about the human being as an End in itself and the idea of the categorical imperative. The Kantian idea is to treat every human being as an end in itself because of the relation between human autonomy and self-government. Kant states that every human being possesses dignity and sovereignty because of its will and inner intrinsic value. In Kant's philosophy human dignity is a basic moral principle. Because of the human capacity for losing and acquiring dignity, the protection of dignity becomes a great moral requirement that is closely linked to the concept of personal autonomy. (21)
The intimate connection between dignity and autonomy is also very important in existentialist philosophies and can be determined as a modern way of interpreting the concept of human dignity. The underlying argument in Jean-Paul Sartre's defense of existentialism as a humanistic philosophy is the connection between human dignity, freedom and autonomy. (22) Because of the intrinsic capacity for choosing the meaning and significance of their own lives, human beings have intrinsic value that can be lost or destroyed. Human dignity applies to the intrinsic human capacities of engaged existence in passion and action in the world. This idea of human dignity is of great significance in Gabriel Marcel's famous lectures from 1963. (23) But it is also present in Simone de Beauvoirs argumentation for the equal dignity between man and woman (24) as well as in the antiracist argumentation for the extension of the concept of human dignity to the whole of mankind. Consequently human rights are universal and inalienable. (25) What is essential in this humanism is the protection of what is "human" and how to develop the characteristics of human dignity in future social life.
The concept of human dignity is essential as the foundation of the development of human rights as legal instruments for the protection of the human person. This is particularly relevant in the extension of the concept of human rights to the so-called biorights. In this context the specifically human, implied in the concept of human dignity, is seen as unity of body and soul. This means that the human body and body parts can be seen as something that states human dignity as an expression of a human person and of what is specifically human. Therefore to respect the human body and its body parts is a question of respect for human dignity. The understanding of the person as bodily incarnated is the primary task in the legal regulation of the biomedical sciences. The French jurist Noëlle Lenoir says that the aim of bioethics and biolaw is to protect what is human, i.e. the human dignity in the technological development. (26) It is the task of human rights law to promote the humanistic ideals in Western European Culture and take care of the idea of the intrinsic dignity of human beings as the foundation for autonomy and personal freedom. In this way human dignity becomes more fundamental than self-determination, because human beings can lose their dignity by having the wrong relation to self-determination. The respect for human dignity as a recognition of what is specifically human expresses a fundamental principle of justice that goes beyond self-determination and distribution of goods in society. In this way human rights express human dignity and are dependent on a view of the human person that goes beyond the sole protection of the conscious agent. The right to life, fairness, equal treatment and other basic rights express the European constitutional culture, in which the constitutional state can be seen as the "cultural gene of humanity". (27)
4. The Principle of Integrity
Integrity is a philosophical concept that is closely connected with autonomy and dignity. It concerns the integrity of the human person, and the personality. The human person has a private sphere which can be described as the sphere of integrity. This sphere of integrity has at the same time a spiritual and a corporeal dimension: the psychical and physical integrity. The spiritual dimension can be expressed by the concept of the zone of the "untouchable", developed by the Danish philosopher Løgstrup. In relation to psychiatry he argues that a permanent focus on motives for actions rather than reasons constitute an intervention in the integrity zone of the individual. (28) The intervention in the zone of the untouchable involves the ignorance of the integrity of the person, and therefore psychiatry should not intervene into the personal untouchable aspects of the human person. This concept can be generalized as a definition of integrity. Integrity concerns the untouchable core of the personality that must not be subject to unwarranted external intervention. In a wider context this implies the protection of the personal integrity of the individual, e.g to the protection of individuals in relation to the public storage of personal data.
But the notion of integrity also comprises certain physical characteristics. The bodily incarnated human subject can be said to constitute a zone of integrity. This zone represents the personal body which belongs to the subject as such. The personal body in a phenomenological perspective can be said to constitute a zone of what is personal and proper to the singular individual. The zone of the bodily incarnated personality is proper to the singular human person and is therefore untouchable. This means that the human body and its parts form a sphere of integrity that is supposed to be treated with special care and comprehension. (29) Here integrity means the right to life and the right to decide about your own death.
The concept of integrity can also be seen in a legal perspective. It is an old legal principle that has been made topical in the present legal situation. In the legal sense the principle originates in Roman law and it derives from the Latin "integritas" and the other notion of Latin origin "intact", signifies as well as "noli me tangere", that which is untouchable, undisturbed and not to be touched. In the French legal tradition this is emphasized by the notion of "L'intangibilité de la personne", (30) but the principle of integrity also plays an important role in declarations of human rights and different European constitutions and can therefore as such be said to constitute a necessary presupposition for the development of biolaw. The legal reference to the integrity of the human person sets limits to biomedical interventions into the human body. It is the realization and protection of the private sphere as a personal zone of the untouchable in which the individual is protected by limits to the permitted intervention into the autonomy and dignity of the human person.
The reference to the protection the physical-psychical integrity of the human person is becoming more and more central in the formulation of legal norms concerning genetic manipulation and the protection of the human genetic structure. The right to inherit a genetic substance that has not been artificially changed is an important aspect of integrity. In this way integrity is used to protect the personal identity of the human person in connection with manipulation. This does not only concern actual people but it also applies to what is characteristic of the human species. Integrity protects the genetic inheritence of future generations and opposes the manipulation of the genetic patrimony and their genetic identity. (31) Manipulations of the human body that substantially changes personal identity can be stopped by referring to the integrity of the human person and the protection of privacy. In this context, there is an intimate connexion between integrity and the private sphere of the human person as subject to individual autonomy.
Furthermore integrity does not only apply to the human body but also concerns a wider sphere of protection of social and economical integrity of the person. Especially the right to protection of information about the person can be mentioned, but also the right of vulnerable and weak social groups to be given a minimum of economical and social protection. Economical and social integrity must respect the protection of a minimum of welfare for the citizens in a welfare state.
The different perspectives on integrity clearly establish the close connection between integrity, personal identity and character. As early as in Plato's ethical theory integrity meant basic moral virtue and human character. The psychical and physical aspects of integrity confirm this comprehensive definition and relates the right to privacy, revealed by integrity, to the concepts of autonomy and dignity. (32)
Finally integrity can also be said to apply to the legal system as such. Ronald Dworkin uses the concept of integrity to describe the political morality of a just legal order. In this understanding of integrity judges and agents in the legal order are said to have integrity when building their decisions on impartiality and fairness .They can be said to confer to each person "equal concern and respect". This is the objective correspondant to the subjective definition of the integrity of the human person. (33)
5. The Principle of Vulnerability
The principle of vulnerability is, although it is not always directly mentioned, also an underlying concept in the ethical and legal debate about bioethical questions. But recently it has become more and more present in the philosophical discourse. One could argue that a philosophical anthropology of the vulnerable human condition is the foundation of this concept. Vulnerability can be seen as an expression of the human condition and is therefore not only a mere descriptive concept but rather a concept with an explicit, normative content. Vulnerability is also an important notion underlying the juridical regulation of human activity. One can say that law is fundamentally institutionalized in order to protect vulnerable human beings.
Especially the French philosopher Emmanuel Lévinas has defined the concept of vulnerability as the foundation for understanding human condition. He analyses vulnerability as the foundation for morality. Morality is a compensation for man's vulnerability. The moral imperative is an imperative to take care of the other and an ethical responsibility for the other. In this way vulnerability can be said to imply an immanent normativity in which the vulnerability is expressed in the corporeal incarnation of the other, e.g. in the face of the other. The existence of the other person expresses vulnerability and demands the ethical engagement of the person. Lévinas formulates that with the imperative "Thou shall not kill" as the very basic concept of the vulnerable existence. (34) This shows the ethical function of the corporeal finitude of human beings that has become the foundation for Lévinas' philosophy. In this perspective the deepest point of morality is revealed in the vulnerable situation of human beings in the world. Vulnerability manifests an asymmetrical imbalance between the weak and the powerful and in this context it demands an ethical engagement and that the powerful protect the weak. It is our vulnerability that makes us receptive for the responsibility emanating from the other as a vulnerable being. This ethical receptivity is the fundamental point of the human condition. The same concern for vulnerability as a fundamental ethical concept can also be shown in Habermas' philosophy. His argument for communicative understanding in a domination-free dialogue also situates vulnerability in the center of the ethical concern. This is openness towards the vulnerable other being taking part in a dialogue. (35)
Vulnerability is therefore an extreme important concept as the foundation for ethical notions of care, responsibility and emphaty with the other. Vulnerability motivates ethical concern for the fragility of the human condition. The human condition is marked by an extreme degree of fragility because of the temporal and finite character of all human life. The bodily incarnated human subject is destined for death and it is not possible to abstract it from mortality and destiny as basic to human life. Instead we have to live with mortality (36) but also to take care of the vulnerable situated subject.
In this context, vulnerability can also be interpreted as an important legal concept and even as the foundation for the legal system. The English philosopher of law and jurisprudence, Hart, says that the vulnerability of human beings is the background for the regulation of its activities in rules and social institutions. (37) The task of legal organisation, legal principles and concrete legal rules is to protect the vulnerable human being, confronted with the possibility of destruction and the interventions from other people, and the state. It is the task of legal regulations of biomedical problems to protect the weakest and the poorest in society against the discrimination and destruction from other social groups.
6. In the Framework of Responsibility and Solidarity
The basic principles as such constitute a sphere of protection of the human person. It is, however, necessary to consider the basic principles in a larger framework of the European welfare state. In this context the concepts of state responsibility and solidarity concerning the protection of vulnerable human beings are of essential significance.
The principles emphasize the need to protect the corporeal incarnated human subject in relation to he development in modern risk-society. (38) They are also necessary tools to secure the development of the right legal rules to protect the body of the individual. The permanent pressure on the intimate human body in modern society is the background for the necessity to see the principles in the larger context of social responsibility and solidarity.
In this context the concept of care is corellative to the dignity, integrity and vulnerability of the human person. The ethics and law of the human person are closely connected to the concept of care. Already the humanist Erasmus saw this concept as the basic attitude of society towards the vulnerable and weak in society. In modern biomedicine the importance of care is (prominent), not only between individuals but also between individuals and state. (39) Against this background the protection and care of vulnerable individuals are becoming an integrated part of modern legal systems.
The German-American philosopher Hans Jonas in his book "The Concept of Responsibility" has argued for the fact that the position of human beings in the modern world and the possible domination and destruction of nature in industrial society has changed the ethical obligations of the human beings. Society must be conscious of its responsibility not to destroy all life on earth. This implies a responsible state as to setting limits to social intervention in nature, animals and the human body as well as to setting limits to the on-going destructive possibilities of life for future generations. The principle of responsibility is founded on the intimate connexion between the human body and the organic nature placing human beings as part of the living world.
The duty to protect vulnerable and fragile life is an application of the categorical imperative in bioethics and biolaw. Hans Jonas extends this to future generations. The imperative says to act in a way to secure that there will exist genuine human life on earth in future. (40) This means that the protection of the autonomy, dignity, integrity and vulnerability of the human person must be directed towards the protection of future generations and the variety of the species in nature to give future human beings the best possible conditions of existence. Therefore the principle of responsibility is the foundation for the formulation of basic principles as legal principles that go beyond pure utilitarian pragmatism. State responsibility implies a heuristics of fear, in which society in the light of the vision of respect for autonomy, dignity, integrity and vulnerability is conscious of the consequences of their own actions and puts a limit to a scientific and industrial development that manipulates the private sphere of the human person.
The concept of state responsibility is somehow already present in the legal development in modern risk society where social intervention in the intimate sphere of the human person is more and more common. (41) The principle of responsibility was earlier seen as a well defined juridical notion. It concerned a persons responsibility for a definite juridical action as its conscious agent. But now the consequence of Hans Jonas definition of responsibility is that the human responsibility of future generations and the following duty to take care of the weak and the vulnerable must be seen as a part of responsibility. In other words, we are confronted with an extension of the content of the notion of responsibility, which means that we are responsible for not contributing to the adequate protection of the vulnerable populations. Today, it is possible to be responsible without having committed an error in a strict juridical sense. Juridical responsibility is also social responsibility. In the welfare state this responsibility implies the duty to take care of the weak, the poor and the sick people in society. The extension of the notion of responsibility in the modern welfare state implies that the welfare state must in legislation and legal practice continue the protection and care for the individual human body, something which was earlier a question of private activity or just handed over to social institutions like the church and the medical profession.
The implementation of the basic principles in modern legal practice, is not only present in civil and criminal law but also in social, health and labour law. The actual legal development shows an extended protection of the human person as the driving force in bioethics and biolaw. The French philosopher Francois Ewald shows in his famous book "L'Etat Providence" about the modern welfare state how risk society compensates for work accidents, sickness and social problems by developing an extended system of insurance work and health insurance, collective systems of care that force companies and society to give compensation for social unhappiness, even though neither the companies nor society can be held responsible for the destiny of the individual in a juridical perspective. (42) Social insurance is created in opposition to the increased intervention into the intimate personality of the individual. This means that legislation and juridical practice tries to develop an extended protection of the human person more or less by implicitly applying the basic principles of autonomy, dignity, integrity and vulnerability.
The link between responsibility and the protection of the basic principles constitute the framework of social solidarity concerning the formulation of norms about intimate human corporeality in the modern welfare state. (43) The project of care in the welfare state, realised in social security as state responsibility protects the legal subjectivity of the vulnerable and the weak. In most European constitutions the basic principles are more or less present as indications of basic human rights of the personality. Legal subjectivity does not only imply taking part in a social contract, rather it is included as a subject for the protection of law. The legal subject has become the one who is worthy of respect and care. (44) The aim of the law is to protect the autonomy, dignity, integrity and vulnerability of the human personality.
The relation between basic principles, rights and protection of person and body must be seen as a consequence of the development of the welfare state and risk society into a caring and protectioning state of care and protection. Legal regulation is no longer built on a contractual relation between legal subjects but develops into a relationship of social solidarity and collective responsibility that also concerns the basic principles related to bodily incarnated human person. In this way law is built on social solidarity between the members of society. The law recognizes the autonomy of the individual but as the other three principles suggests at the same time, society has a collective responsibility to put limits to the rights of the individual to its own body. The basic principles in relation to the human body must be considered in a broader perspective. The notions of dignity, integrity and vulnerability are expressions of the necessary protection of the human body in the present legal development and motivates a human rights oriented duty to the protection of the personal and corporeal sphere of the individual in the modern welfare state. In the framework of responsibility and solidarity the basic principles confronted with the threat of powerful technological intervention in the personal sphere of the human person constitute an effort to formulate a humanistic conception of man as a foundation for policy and legal regulation in the welfare state.
(1) For the Concept of A European Legal Culture; Peter Häberle: Europäische Rechtskultur, Suhrkamp, Frankfurt 1997.
(2) Inger Dübeck: Personers rettigheder - Om individers fysiske og psykiske integritet, selvbestemmelse og identitet, jurist og økonomforbundets forlag, København 1997 for a development of the aspects of the law of protection of the human person.
(3) See Beauchamp and Childress: Principles of Biomedical Ethics, Oxford University Press, Oxford 1979.
(4) See Helga Kuhse: The Sanctity of Life Doctrine in Ethics - A Critique, Oxford University Press, Oxford 1977.
(5) Emmanuel Mounier: Le personalisme, PUF, Paris 1950.
(6) For these concepts Ronald Dworkin: Taking Rights Seriously, p. 101, Duckworth, London 1977.
(7) Paul Ricoeur: Le Juste, Editions Esprit, Paris 1995. In this book there is an analysis of the function of the Kantian reflective judgement in law.
(8) Gerald Dworkin: The Theory and Practice of Autonomy, p. 12, Cambridge University Press 1988.
(9) Jean-Paul Sartre: LEtre et le Néant, Gallimard, Paris 1943.
(10) Gerald Dworkin: The Theory and Practice of Autonomy, p. 20, Cambridge University Press 1988.
(11) Jürgen Habermas: Faktizität und Geltung, Suhrkamp, Frankfurt 1992, John Rawls: Political Liberalism, Basil Blackwell, Oxford 1992 and Ronald Dworkin: Taking Rights Seriously, Duckworth, London 1977.
(12) Ibid p. 9.
(13) This is implicit in Habermas notion of "Verfassungspatriotismus", Rawls concept of a "Liberal Political Community" and Dworkins ideas of "Law as Integrity" and law as an expression of "Political Morality".
(14) Warren Reich (ed): The Encyclopedia of Bioethics, Vol. 1 p. 219ff, Washington, 1978.
(15) Gerald Dworkin: The Theory and Practice of Autonomy, Cambridge University Press 1988.
(16) Beauchamp & Childress: Principles of Biomedical Ethics, p. 68, Oxford University Press, Oxford 1979.
(17) Warren Reich (ed): The Encyclopedia of Bioethics, Vol 1 p. 218, Washington 1978.
(18) Beauchamp & Childress: Principles of Biomedical Ethics, p.79, Oxford University Press, Oxford 1979.
(19) Faden & Beauchamp: A History and Theory of Informed Concent, New York 1986.
(20) Pico della Mirandola: Oratio de hominis dignitate, Danish translation: Om menneskets værdighed, Renæssance Studier 6, 1989.
(21) Immanuel Kant: Die Metafysik der Sitten, Werkausgabe Band 7, Suhrkamp 1982.
(22) Jean Paul Sartre: Lexistentialisme est un humanisme, Nagel, Paris 1943.
(23) Gabriel Marcel: The Existentialist background of Human Dignity, New York 1963.
(24) Simone de Beauvoir: Le deuxième Sexe, Gallimard, Paris 1949.
(25) Rubin Gotesky and Ervin Laszlo: Human Dignity, This Century and the Next, an Interdisciplinary Inquiry into Human Rights, Technology, War and the Ideal Society, Gordan and Breach, New York 1970.
(26) Noëlle Lenoir: Legal Argumentation in Biolaw, 1. International Conference on Bioethics and Biolaw, Copenhagen 1996.
(27) Peter Häberle: Europäische Rechtskultur, Suhrkamp, Frankfurt 1997.
(28) K.E. Løgstrup: "Urørlighedszonen" in Kunst og Etik, Gyldendal, København 1982.
(29) Inger Dübeck: Personers rettigheder - Om individers fysiske og psykiske integritet, selvbestemmelse og identitet. Jurist og Økonomforbundets forlag, København 1997.
(30) Irma Arnoux: Les droits de lêtre humain sur son corps, Bordeaux 1994.
(31) Irma Arnoux: Les droits de l être humain sur son corps, Bordeaux 1994.
(32) Inger Dübeck: Personers rettigheder - Om individers fysiske og psykiske integritet, selvbestemmelse og identitet. Jurist og Økonomforbundets forlag, København 1997.
(33) Ronald Dworkin: Laws Empire, New York 1986. In this book Dworkin talks about the political morality and the integrity of the judge, as well as of the whole legal system as such.
(34) Emmanuel Lévinas: Totalité et infini, Phenomenologica, Kluwer, Den Haag 1961.
(35) Arne-Johan Vetlesen: "Worlds Apart? Habermas and Lévinas" in Philosophy and Social Criticism, Vol 23, No. 1 1997.
(36) Daniel Callahan: The Troubled Dream of Life, New York 1992.
(37) Beauchamp & Childress: Principles of Biomedical Ethics, Oxford University Press, Oxford 1979, p. 121.
(38) For the concept of risk society see Ulrick Beck: Das Risikogesellschaft, Suhrkamp, Frankfurt am Main, 1986.
(39) Inger Dübeck: Personers rettigheder - Om individers fysiske og psykiske integritet, selvbestemmelse og identitet, Jurist og økonomforbundets forlag, København 1997, p. 99.
(40) Hans Jonas: Das Prinzip Verantwortung, Suhrkamp, Frankfurt am Main, 1979.
(41) Paul Ricoeur, "Le concept de responsabilité" in Le juste, Editions Esprit, Paris 1995. Ricoeur emphazises the paradox that the remoralisation of the notion of responsibility means that we are approching a society where more and more people as well as the state are responsible without being guilty. But he also shows how responsibility towards the vulnerability of the other. He thinks that we have to find "La juste distance entre les trois idées dimputabilité, de solidarité et de risque partagé" (p.70).
(42) Francois Ewald: LEtat Providence, Seuil, Paris, 1984.
(43) For the relationship between solidarity, responsiblility and the welfare state, see Mireille Delmas-Marty: Pour un droit common, Paris 1995.
(44) Paul Ricoeur: "Qui est le sujet de droit", in Le Juste, Editions Esprit, Paris 1995.